Allianz Australia Insurance Limited v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Allianz Australia Insurance Limited v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 73
APPLICANT INSURER:	Allianz Australia Insurance Limited
RESPONDENT insurer:	Insurance Australia Limited t/as NRMA Insurance
Member:	Belinda Cassidy
DATE OF DECISION:	23 February 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute between insurers about which insurer was the relevant insurer within the meaning of section 3.2; claim made by injured person against Allianz; Allianz accepts liability for the claim and pays statutory benefits for first 26 weeks after accident; Allianz then denies liability to pay statutory benefits on basis claimant wholly at fault and has only minor injuries; Allianz then requests NRMA accept transfer of claim on basis that NRMA’s insured (the claimant) is wholly at fault; NRMA refuses; Held – power to determine dispute about relevant insurer under section 3.2 is limited to determining which insurer will accept a claim for statutory benefits; in circumstances where the claim has been accepted and benefits paid, there is no dispute; the Personal Injury Commission has no power under section 3.2 or elsewhere to determine whether Allianz can recover what it has paid from NRMA; consideration of section 3.3(1) and clause 4.24 – 4.28 of the Motor Accident Guidelines (Version 9, effective 15 January 2023) and the concept of when a claim is accepted.
determinations made:	CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017 (the MAI Act), the Commission determines: 1. There is no dispute between the parties about which insurer will accept Mr Dogias’ claim for statutory benefits within the meaning of s 3.3(1) of the MAI Act. 2. The proceedings are dismissed.

STATEMENT OF REASONS

INTRODUCTION

On 29 November 2021, Dennis Dogias was the driver of one of two vehicles involved in a collision. His vehicle was insured with NRMA. The other vehicle, driven by Stathios Zoletas was insured by Allianz.
Mr Dogias says he was injured in the accident and so he made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). Mr Dogias made his claim with Allianz because he was of the view Mr Zoletas caused the accident.
Allianz referred to the Personal Injury Commission (the Commission) a dispute it has with NRMA as to which of the two insurers should be the “relevant insurer” within the meaning of s 3.2 of the MAI Act and pay Mr Dogias his statutory benefits.
That dispute has been referred to me for determination and I have held two preliminary conferences to discuss the dispute with the representatives of the two insurers.

LEGISLATIVE FRAMEWORK

Statutory benefits generally

The claim that is the subject of these proceedings is a claim for statutory benefits under Part 3 of the MAI Act. Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
Under s 3.1 of the MAI Act, benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and benefits are payable even if the injured person’s fault caused the motor accident. However pursuant to ss 3.11(1) and 3.28(1), an injured person is not entitled to statutory benefits beyond the first 26 weeks after the accident if the injured person only has minor injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident. A motor accident is considered to be caused “mostly by the fault” of the injured person if their contributory negligence is assessed as greater than 61%.

General relevant insurer provisions

Under s 3.2(1), statutory benefits under Part 3 are payable by the relevant insurer and which insurer is the “relevant insurer” is determined by a consideration of:
(a) the remaining provisions of s 3.2;
(b) the “arrangements” entered into by insurers as provided for in s 3.3(1), and
(c) any determination made by the Commission under s 3.3(2).
Section 6.12(1) provides that a statutory benefits claim is made by an injured person “by giving notice of the claim to the relevant insurer under Part 3”.

Specific relevant insurer provisions

The relevant remaining provisions of s 3.2 are as follows:
“(2) The relevant insurer is (subject to this section and section 3.3)—
(a)  if the motor accident concerned involved only 1 motor vehicle with motor accident insurance cover—the insurer of the motor vehicle, or
(b)  if the motor accident concerned involved more than 1 motor vehicle—the insurer of the at-fault motor vehicle, or
(c)  in any other case—the Nominal Defendant.
Note - The Nominal Defendant will be the relevant insurer where the motor vehicle concerned was not insured or identified as referred to in Division 2.4.
(4) The insurer of the at-fault motor vehicle is the insurer who provides motor accident insurance cover for—
(a)  the motor vehicle the use or operation of which caused the death or injury for which the statutory benefits are payable, or
(b)  if more than 1 motor vehicle caused the death or injury—the motor vehicle the use or operation of which contributed most to causing the death or injury for which the statutory benefits are payable.
(8) The Nominal Defendant or other insurer who pays statutory benefits under this Part is entitled to recover the amount of statutory benefits properly paid from the relevant insurer liable to make those payments, along with the costs associated with handling the statutory benefits claim.”
Sub-section (3) states that after five years, the Lifetime Care and Support Authority becomes the relevant insurer for the payment of treatment expenses and sub-section (6) provides that the Nominal Defendant pays statutory benefits when the at-fault vehicle is an interstate vehicle or otherwise a non-licensed insurer.
Section 3.2(4) was amended by the Motor Accident and Workers Legislation Amendment Act 2022 which was assented to on 16 June 2022. The amendments apply to motor accidents occurring before that date, claims made before that date and proceedings pending before that date. They therefore clearly apply to Mr Dogias’ claim and the current proceedings. The amendments made were to change the wording of sub-section (4)(b) from:
“if there is more than one such motor vehicle - the owner or driver of the motor vehicle who was most at fault.”
to
“if more than 1 motor vehicle caused the death or injury - the motor vehicle the use or operation of which contributed most to causing the death or injury for which the statutory benefits are payable.”

Dispute resolution

Section 3.3(2) provides that where there is a dispute about which insurer “will accept a claim for statutory benefits”, the Commission may determine the dispute and that determination will be binding on the insurers for the purposes of Part 3.
The parties agreed at the first preliminary conference that Schedule 2, cl 3(c) provides the Commission with power to determine a declared miscellaneous claims assessment matter being “which insurer is the insurer of the at-fault motor vehicle for the purposes of section 3.3”.

REVIEW OF THE EVIDENCE

On 17 December 2021, Mr Dogias completed an application for personal injury benefits.[1] He provides this description of the accident:
“I was on my way down Alfred Street, Ramsgate, towards the big roundabout at the end of Alfred Street heading south. I was getting towards where the parking spaces are before the roundabout and I noticed there was a van on my left hand side which was the only vehicle double parked. As I was approaching the roundabout the van pulled out directly in front of me and hit my vehicle. The spot the van pulled out from was the spot where it was both double parked and was parallel to the cars parked on the kerb. I was travelling the speed limit, approx. 40km/h, and I did not have time to react because he was immediately in front of my vehicle after I finished checking and giving way to the U turn bay on my right hand side. When he hit my vehicle, he dragged me across to the right hand side of he [sic] street, halfway into the only available parking spots in the parking bay on the right.”
[1] Document A2 at page 14 of the applicant insurer’s original bundle of documents.
Mr Dogias conceded in the claim form that he had longstanding neck and upper limb pain, shoulder and back pain and describes his accident-related injuries as follows:
“I have suffered from intensified neck and upper limb pain following the motor vehicle accident. Further I have also received soft tissue injury as a result of the motor vehicle accident.”
On 9 February 2022, Allianz wrote to Mr Dogias with a “liability notice – benefits up to 26 weeks”[2]. In that notice Allianz accepted liability for the claim and advised that Allianz would pay the claimant’s treatment expenses.
[2] Document A2 in the applicant insurer’s additional bundle of documents.
On 14 April 2022, Allianz sent to Mr Dogias a document headed “liability notice – benefits after 26 weeks”.[3] That letter advised Mr Dogias that Allianz did not accept liability to pay ongoing statutory benefits and that his benefits would cease after

30 May 2022. Allianz denied liability for two reasons:
(a) Allianz was of the view Mr Dogias was wholly at fault in the accident and that Mr Zoletas was not at fault at all, and
(b) Allianz said that all of the claimant’s injuries came within the definition of “minor injury” in s 1.6 of the Act.
[3] Document A1 in the applicant insurer’s additional bundle of documents.
On 8 and 23 August 2022, Allianz wrote to NRMA requesting the “transfer of claim to at fault insurer”, providing copies of document and asking NRMA to accept or reject the transfer.[4]
[4] The 8 August 2022 letter is document A4 found at page 4 of the respondent insurer’s bundle of documents, the 23 August 2022 letter is document A3 found at page 20 of the applicant insurer’s original bundle of documents.
On 26 August 2022, by email,[5] NRMA rejected the transfer application stating that its insured (Mr Dogias) said the van was double parked with no indicators or hazard lights on and that Mr Zoletas had made a sharp right hand turn as the claimant was passing. NRMA say that Mr Zoletas should have checked the roadway was clear before turning.
[5] Document A4 found at page 21 in the applicant insurer’s original bundle of documents.
Allianz has provided a schedule of the statutory benefits paid by it to, or on behalf of, Mr Dogias.[6] This list of payments reveals:
[6] Document A3 in the applicant insurer’s additional bundle of documents.
(a)
the first payment made was on 7 February 2022 being a payment to

Mr Dogias for treatment (massage therapy) dated 10 January 2022 in the sum of $99;
(b)    the last payments made were on 13 October 2022, being four payments to Mr Dogias for treatment (massage therapy) between 3 and 31 March 2022 in the sum of $396, and
(c)    the total sum of all monies paid by Allianz on the claim was $2,944.21 made up of:
(i)treatment expenses   $904.24;
(ii)treating medical reports  $220, and
(iii)factual investigations and police report       $1,819.97.
The insurer had the circumstances of the claim investigated by Lee Kelly Commercial Investigations. The first report is dated 30 March 2022[7] and includes statements taken from Mr Zoletas and Mr Dogias as well as photographs of the location of the accident. Measurements were undertaken of the place where the accident happened and recorded in a second report dated 20 January 2023.[8]
[7] Document A5 found at page 25 of the applicant insurer’s original bundle.
[8] Document A4 in the applicant insurer’s additional bundle of documents.
The accident occurred on Alfred Street at Ramsgate Beach. Alfred Street runs in a north-south direction and each direction of traffic is separated by a wide green space with grass and trees. In this part of Alfred Street, parallel parking is permitted on either side of the two parts of the Street.
At the part of Alfred Street where the accident happened the wide green space becomes a parking area consisting of a number of marked parking bays which are perpendicular to the traffic lanes. There are twin parking bays, one accessible for each direction of traffic and the cars park nose to nose. Parallel parking is also permitted on the eastern kerb side of Alfred Street.
Both Mr Zoletas and Mr Dogias were travelling south along Alfred Street. They were past the wide green space and travelling with cars parallel parked on their left and cars parked in the parking bays on their right.
The claimant’s evidence is that:
(a)    he was driving at 50kmph;
(b)    Mr Zoletas was stopped and double parked – parallel to the cars parked next to the kerb;
(c)    Mr Zoletas had no hazard, indicator or brake lights activated, and
(d)    Mr Zoletas turned right directly in front of him to park in one of the parking bays as Mr Dogias drove up to him.
Mr Zoletas says in his statement:[9]
(a)    he was not stopped but was proceeding slowly;
(b)    he was in the middle of the road;
(c)    there is no room to overtake;
(d)    he indicated to turn into a parking spot, and
(e)    the claimant collided with him as he was turning.
[9] Extracts of which are in the insurer’s submissions.
There is no evidence from any independent witness and no closed circuit television or dash cam footage of the accident.
Mr Zoletas (Allianz) says the version of events given by Mr Dogias is incorrect as there is insufficient room for there to be a lane of parked cars, Mr Zoletas’ van double parked and traffic moving along Alfred Street.
The measurements obtained by the investigator show:
(a)
the width of the southbound lane from the kerb to the parking bays is

9.6m;
(b)    the southbound lane of Alfred Street has, in addition to the parking bays in the centre, parallel parking on the kerb side of the street;
(c)    the width of the southbound lane from the edge of where cars were parallel parked in the street to the parking bays is 7.3m, and
(d)    Mr Dogias’ car was about 1.7m wide and Mr Zoletas’ van was 2.2m wide.
The measurements taken suggest to me that with a metre between the parallel parked cars and Mr Zoletas’ van and the width of the van (2.2m) there would still have been about 5m before the perpendicular parked cars which could be adequate room for

Mr Dogias’ car to pass (1.7m).

Submissions

Submissions from Allianz, the applicant insurer

Allianz’s submissions at [14] and [15] include photographs of the accident in particular the collision between the claimant’s car and Mr Zoletas’ van.[10] The van is partially in one of the perpendicular parking bays and the rear part of Mr Dogias’ car is in contact with the middle of the driver’s side of the van. The rear part of Mr Dogias’ car appears to me to be in Alfred Street but the front driver’s side portion of Mr Dogias’ car appears to be just inside a parking bay with the passenger side of the vehicle outside the bay.
[10] The original submissions are dated 17 November 2022 and identified as A1 at page 1 of the applicant insurer’s original bundle.
Allianz notes at [16] that a late report was made to the police with limited details of the accident. The police did not attend the accident scene.
Allianz then refers to the claimant’s description of the accident in his claim form and relevant portions of the claimant’s statement to investigators as well as the statement given by Mr Zoletas.
Allianz says that the version of its insured driver is more plausible because the available space in the roadway was limited, the insured vehicle was a van which would have taken up space and that there was parking available in the perpendicular bays.
Allianz says the claimant did not slow down but appears to have maintained his speed and attempted to overtake. Allianz says the photographs suggest the insured was well into his right turn into the parking space at the time of the collision.
Allianz alleges that the claimant’s actions were the sole cause of the accident because:
(a)    the claimant was attempting to overtake when it was not safe to do so;
(b)    attempting to overtake a vehicle attempting to turn right;
(c)    failing to slow and wait for the insured to park;
(d)    travelling at an excessive speed, and
(e)    not keeping an appropriate distance between him and the vehicle in front.

Submissions from NRMA, the respondent insurer

NRMA submits that the evidence establishes that the Allianz driver was double parked with no indicators or hazard lights activated and that he turned right as the claimant was passing. NRMA says Mr Zoletas did not check the roadway was clear. NRMA refers to Mr Zoletas’ statement where he said he did not see the claimant before the collision which suggests he was not keeping a proper lookout. NRMA says Mr Zoletas should have “taken extra care” before turning right.
NRMA cites several cases relevant to negligence, duty of care and breach and says,
41.“the evidence demonstrates that the Allianz insured driver departed from the standard of care of the reasonable man … and maintains its view that the Allianz insured vehicle was wholly at fault for the motor accident.”

Issue in dispute

Section 3.2(2) provides that in the case of a two-car collision where both vehicles are insured, such as the collision between Mr Dogias and Mr Zoletas, that the relevant insurer is the insurer of the at-fault vehicle. Section 3.2(4) provides that in a two-car collision where only the use of one vehicle caused the claimant’s injury, that vehicle is the relevant insurer but where the use of both vehicles caused the claimant’s injury, the relevant insurer is the one which contributed most to the cause of the injury.
I am of the view that “contributed most” requires a decision about whether only

Mr Dogias’ use or operation of his vehicle caused his injuries or whether only

Mr Zoletas’ use or operation of his vehicle caused Mr Dogias’ injuries. If I consider they both caused the accident then I have to decide which was at least 51% (most) responsible for the accident in order for their insurer to be the relevant insurer.
Interestingly the legislation is silent as to which is the relevant insurer in circumstances where I consider the two parties equally to blame (each party is 50% responsible).

Does the Commission have power to determine this dispute?

The determination of which insurer is the relevant insurer is said, in s 3.2(1) to be subject to s 3.2 as well as s 3.3. While the two insurers have both provided extensive submissions in respect of the operation of s 3.2 and its application to these proceedings, there were no written submissions made concerning how s 3.3 is to be interpreted and applied.
The interpretation of s 3.3 was discussed at the preliminary conference held on

7 February 2023. The parties were offered time to further consider the operation of the section but requested I determine the matters of the papers.

What are the s 3.3(1) arrangements?

Section 3.3(1) provides that insurers may enter into arrangements to determine “which insurer will accept a claim for statutory benefits and be the relevant insurer” and that these arrangements must be approved by the State Insurance Regulatory Authority (SIRA).
The parties confirmed at the teleconference that there are arrangements in place between the licensed insurers (and not unlicensed insurer or the Nominal Defendant). The parties indicated that these arrangements are not publicly available, and they are not to be found on, for example, the SIRA website.
I was advised by the parties that the s 3.3(1) arrangements in place between the insurers provide for the request by one insurer to another for a claim transfer and for the other insurer to accept or reject the request to transfer the claim and if the transfer is rejected for proceedings to be commenced in the Commission. The parties were unaware of whether SIRA had approved these arrangements.

The arrangements in place, pursuant to s 3.3(1) are there presumably to help insurers determine which insurer is the relevant insurer when two insurers do not agree. The arrangements however are not just relevant to the question of which insurer is going to pay an injured person’s statutory benefits, but it is also relevant to the injured person’s need to know which insurer should be the recipient of the notice of the claim in accordance with s 6.12(1).
The s 3.3(1) arrangements might also assist me in determining the dispute that has been referred to me. For example, I do not know whether there is an approved form for the request to transfer or a time limit on the request to transfer the claim. I am not therefore in a position to determine whether Allianz has made a valid request for the transfer of the claim.
In the absence of any publicly available documented arrangements, I can only proceed on the basis that whatever s 3.3(1) arrangements are in place, they have been complied with, and there is therefore a valid dispute (under those arrangements) between the parties which has been referred to the Commission.

What is the s 3.3(2) power?

Section 3.3(2) gives power to the Commission to determine “the insurer who will accept a claim” where there is a dispute between insurers about “which insurer will accept a claim for statutory benefits” or where there is any “delay in determining the insurer who will accept a claim”. Schedule 2(3)(c) declares a dispute about “which insurer is the insurer of the at-fault motor vehicle for the purposes of section 3.3” to be a miscellaneous claim assessment matter which can be referred to and determined by the Commission in accordance with Chapter 7 of the MAI Act (division 7.5 and sub-division 3).
While s 3.2(8) permits an insurer “to recover the amount of statutory benefits properly paid [by it] from the relevant insurer liable to make those payments”, there is no power given to the Commission to determine a dispute about recovery in that section, Schedule 2 or elsewhere in the MAI Act. The power of the Commission in s 3.3(2) does not, in my view, extend to determining which insurer is the relevant insurer for all purposes under the Act, including for the purpose of determining whether one insurer can recover benefits paid by it from another insurer.
The power of the Commission in s 3.3(2) is, in my view, limited to determining a dispute between insurers for the limited purpose of deciding which insurer will accept a claim for statutory benefits.
This then leads to the question, what does “accept the claim” mean? There is no definition of that phrase in the Act. It could mean, receiving the claim or it may cover the insurer dealing with the claim or other some formal step in the life of the claim.
Noting that, the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute"[11] a consideration of the MAI Act must occur along with a consideration of the relevant Motor Accident Guidelines (the Guidelines). The Guidelines are an important part of the legislative scheme in so far as the making and management of claims is concerned. The Guidelines cover things an injured person must do as well as regulating what insurers can or should do.
[11] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] (emphasis added).

Making and receiving a claim

A claim is made by notifying the “relevant insurer” in accordance with s 6.12(1) and in the form approved by SIRA as required by with s 6.15(1).
The Guidelines contain a number of provisions commencing at cl 4.18 about how a statutory benefits claim can be made including on-line and in writing.
A claim is made when the insurer is notified of the claim and the insurer can only be notified of the claim when it receives the claim. But receipt of the claim is not, in my view, what is meant by acceptance of the claim. That phrase to me suggests some additional and purposeful step taken by the insurer.
The legislation and guidelines suggest there is a period of time and activity between receipt and acceptance of the claim. Clause 4.25 of the Guidelines for example provides quite specific details about how an insurer must first acknowledge the claim. Another example is found in s 6.9 of the MAI Act which provides that a statutory benefits claim “need not be dealt with” until the accident verification requirements have been completed.
When a claim is made, the claim must be investigated. The insurer might make enquiries with the police, the hospital or treating practitioners to confirm the accident happened the way in which the claimant said it did, to confirm the claimant was injured in an incident that comes within the definition of “motor accident” and to ensure the accident occurred in the state of New South Wales. The insurer would also, possibly before any other investigations were undertaken, make enquiries to ensure it was the insurer on risk for the particular vehicle said to be insured by it and involved in or responsible for the accident.
Clause 4.26 is of particular relevance in this matter as it appears to provide a means by which a claim that has been made and received by one insurer, can be transferred to another insurer:
“[4.26] In accordance with Division 6.3, section 6.15(4) of the Act, if notice of a claim has been given to an incorrect insurer and the claim must be transferred to the relevant insurer, the claimant is excused from giving notice of a claim to the relevant insurer. The insurers must cooperate so that the necessary information is exchanged, and the claimant’s recovery and benefits are not adversely affected.”
This clause supports what the two insurers have told me about the contents of the s 3.3(1) arrangements. That is if one insurer is of the view the claimant has made a claim against the “incorrect insurer”, that insurer applies to another insurer to transfer the claim and that other insurer either accepts or rejects the transfer.
The Guidelines also provide a further series of provisions under the heading “sharing agreements” as follows:
“[4.27] If more than one vehicle is involved in the accident and the insurers agree to share the claims between or among themselves, a relevant insurer will be nominated by the insurers to manage the claims on behalf of all the insurers.
[4.28] Until the relevant insurer has been nominated, the insurers on whom the claims are made must continue to manage the claims.”
“Sharing” appears to be predicated on a claimant making more than one claim and a “relevant insurer” being nominated to manage the multiple claims. The reference to “claim” in this part of the Guidelines does not distinguish between statutory benefits and damages claims. It refers throughout to the term “relevant insurer” which is a specific term associated only with statutory benefits claims made under Part 3 and not used at all in Part 4 or elsewhere in relation to damages claims. The MAI Act does not appear to provide (in s 6.12) for multiple statutory benefits claims and s 3.2 does not appear to provide for the “sharing” of statutory benefits claims. In Mr Dogias’ claim only one claim for statutory benefits was ever made in any event, that is a claim made against Allianz and therefore the “sharing” provisions of the Guidelines do not apply to him and his claim. It may be that the s 3.3(1) arrangements provide for sharing but that cannot be determined.
Mr Dogias made his claim against Allianz. There is no evidence before me as to the acknowledgement given by Allianz in accordance with cl 4.25 of the Guidelines but there is no dispute in this matter that the claim has been made and the claim has been received by Allianz.

Accepting a claim

Section 6.19(1) provides that within four weeks after the claim for statutory benefits is made, the insurer must notify the claimant “whether or not the insurer accepts liability for the payment of statutory benefits during the first 26 weeks”. Section 6.19(2) provides that within three months of the claim being made, the insurer must notify the claimant about whether or not it “accepts liability for the payment of statutory benefits after the first 26 weeks”.
For the insurer to accept liability for the payment of statutory benefits for the first 26 weeks this would entail the insurer against which the claim was made:
(a) accepting the claimant was injured, in a motor accident, in New South Wales in accordance with s 3.1, and
(b) accepting that it is the relevant insurer in accordance with s 3.2.
For the insurer to accept liability for the payment of statutory benefits beyond the first 26 weeks after the accident, the insurer against which the claim was made would need to:
(a) accept the claimant was injured, in a motor accident, in New South Wales in accordance with s 3.1;
(b) accept that the claimant has more than a minor injury;
(c) accept that the claimant was not wholly or mostly at fault, and
(d) accepting that it is the relevant insurer in accordance with s 3.2.
The terms of Allianz’s first liability notice to the claimant dated 9 February 2022 refers to the claim and the date of the accident and says that “after considering the information provided, Allianz accepts liability for your claim for statutory benefits”. The second liability notice issued by Allianz and dated 14 April 2022 does not accept liability to pay the claimant any further statutory benefits beyond the first 26 weeks after the accident. The reasons for Allianz denying liability do not accept or deny that Allianz is the “relevant insurer” but deny liability for other reasons (fault and minor injury).
If the insurer denies it is the relevant insurer, then the appropriate course of action would be to not accept liability for the payment of statutory benefits in accordance with s 6.19(1) or (2) and provide that as the reason for denying liability (along with any other relevant reason). If the insurer is not sure whether it is the relevant insurer, then a possible course of action would be to accept the claimant was injured in a motor accident to which the legislation applies but not accept it is the relevant insurer pending further enquiries. The insurer could then pay the benefits and seek recovery of them from the correct relevant insurer at a later date under s 3.2(8). It may be that the s 3.3(1) arrangements cover what is to be done in those circumstances but as these arrangements are not publicly available and before me I do not propose to further consider what could or should have been done by Allianz.
Mr Dogias made his claim against Allianz by serving notice of the claim (the application for personal injury benefits) on Allianz. Allianz then issued a notice accepting liability to pay statutory benefits and Allianz commenced paying Mr Dogias those benefits for the treatment he has claimed from 10 January 2022 to 31 March 2022. It has long been accepted that an admission of liability by an insurer in an action for negligence is an admission there was some damage occasioned and it is not open to a court to enter judgment for the defendant.[12] Allianz has never raised an issue with the claimant as to whether it is the relevant insurer or not and has paid Mr Dogias an amount of statutory benefits which in my view demonstrates that Allianz accepts the claim and accepts that it is the “relevant insurer” within the meaning of s 3.2.
[12] See the judgment of Samuels JA in Sivas v GIO [12] MVR 272 at page 275.
Finally, it is noteworthy that Allianz has issued two liability notices to Mr Dogias. As the relevant insurer, Allianz has the authority to issue those notices. Presumably if Allianz was not the relevant insurer it would have no authority to issue those notices and any notices issued by it would have no effect on the claimant and could not bind NRMA as the relevant insurer.
A claim is made (by the insurer being notified of it) and the insurer then deals with the claim by taking steps in respect of the claim. These steps include acknowledging the claim (under cl 4.25 of the Guidelines), requesting verification of the accident (under s 6.9 of the MAI Act) and investigating the claim. Each of these steps individually or together could constitute the acceptance of the claim. In my view acceptance of the claim is beyond question once the insurer accepts liability for the claim.
I am satisfied on the information before me that Allianz has accepted Mr Dogias’ claim for statutory benefits arising out of his accident on 29 November 2021. The claim was accepted in clear terms by the first liability notice issued to Mr Dogias on

9 February 2022.
There is therefore no power for the Commission to determine whether Allianz or NRMA is the relevant insurer because there is no dispute about which of those insurers “will accept the claim” within the meaning of s 3.3(2). Allianz has accepted the claim.

What is the status of the claim?

It is acknowledged that after a claim has been made and accepted, further information may arise about the claim which may affect the liability decision made by an insurer and communicated to the claimant in respect of a claim. Section 6.19(5) of the MAI Act provides that an insurer can accept liability to pay statutory benefits after denying liability for the claim and can deny lability after having accepted it.
If further information arises, this information may also change the insurer’s view of whether it is the relevant insurer. This is what appears to have happened here. Allianz accepted the claim when it communicated its first liability notice to Mr Dogias on

9 February 2022. The Lee Kelly Factual Investigation report was received on or after 30 March 2022 and on 14 April 2022 Allianz decided to deny liability for the claim because in its view Mr Dogias was wholly at fault. That decision would also suggest that at that time Allianz must have been of the view it was not the relevant insurer because NRMA, was the insurer of what Allianz considered to be the “at-fault” vehicle (the vehicle driven by the allegedly wholly at fault Mr Dogias).
Allianz waited more than four months before raising the relevant insurer issue with NRMA which it did in August 2022.
The Allianz list of payments shows that treatment accounts were submitted by

Mr Dogias dated from 10 January to 31 March 2022 which were paid by Allianz between 7 February and 13 October 2022. Mr Thompson advised that no further expenses have been submitted by Mr Dogias and no further expenses have been incurred by Allianz since then.
I queried whether the claimant’s statutory benefits claim is at an end and whether the dispute before the Commission would be more appropriately characterised as the recovery of benefits paid by one insurer from another (under s 3.2(8)).
The legal representatives for Allianz informed me that the claimant did not seek an internal review of the insurer’s decision to deny liability.
Mr Thompson indicated that there is no certainty about the ending of the statutory benefits claim. Mr Thompson said because of this he urged me to determine which insurer is the relevant insurer for the purposes of any statutory benefits the claimant might seek to recover in the future and any damages claim he may make. I note that the claimant’s ability to refer a minor injury decision or wholly at fault decision to the Commission for assessment depends on there having been a request for an internal review to be undertaken by the insurer and either that internal review has been done or a certain period of time has elapsed and no internal review was done.[13]
[13] See s 7.19 (for medical assessment matters) and s 7.41 (for miscellaneous claims assessment matters).
In the light of the liability decisions made by Allianz to date, and the absence of any internal review application from Mr Dogias, he currently has no entitlement to benefits after 30 May 2022 and no entitlement to recover damages.
As I have already found, s 3.3(2) provides the Commission with power to determine which insurer is the relevant insurer but not for all purposes relevant to a statutory benefits claim such as whether Mr Dogias is wholly or mostly at fault under ss 3.11 and 3.28. The Commission’s power lies in determining which insurer is the relevant insurer only for the purpose of determining which insurer will accept the statutory benefits claim. I am also of the view that any decision about which insurer is the relevant insurer can only be relevant to a statutory benefits claim and does not determine whether an insurer is liable or not in a damages claim.

CONCLUSION

I do not consider, as the Member to whom these proceedings have been allocated, I can determine now, an issue about which insurer is the at-fault insurer and therefore the relevant insurer under s 3.2 of the MAI Act.
The Commission only has power to determine the relevant insurer when there is a dispute about which insurer will accept the claim. In circumstances where there is no dispute because the Commission has no power when Allianz has accepted the claim, made decisions on the claim and paid benefits in respect of the claim.
The Motor Accident Regulation 2017 does not declare a s 3.3(2) dispute to be a regulated miscellaneous claims assessment matter and therefore no costs can be awarded to either insurer.

[2023] NSWPIC 73

23 February 2023